Gujarat High Court Case Information System
Print
LPA/877/2006 11/ 11 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 877 of 2006
In
SPECIAL
CIVIL APPLICATION No. 10265 of 2006
With
LETTERS
PATENT APPEAL No. 878 of 2006
In
SPECIAL CIVIL APPLICATION No. 10266 of 2006
For
Approval and Signature:
HONOURABLE
MR.JUSTICE V. M. SAHAI
sd/-
HONOURABLE
MR.JUSTICE G.B.SHAH
sd/-
=========================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
Yes
2
To
be referred to the Reporter or not ?
Yes
3
Whether
their Lordships wish to see the fair copy of the judgment ?
No
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
No
5
Whether
it is to be circulated to the civil judge ?
No
=================================================
SURMOUNT
LABORATORIES PVT.LTD. – Appellant(s)
Versus
MINAKSHIBEN
C MERCHANT – Respondent(s)
=================================================
Appearance
:
MR JV JAPEE for Appellant(s) :
1,
MR PH PATHAK for Respondent(s) :
1,
=================================================
CORAM
:
HONOURABLE
MR.JUSTICE V. M. SAHAI
and
HONOURABLE
MR.JUSTICE G.B.SHAH
Date
: 29/8/2011
CAV
(COMMON) JUDGMENT
(Per
: HONOURABLE MR.JUSTICE G.B.SHAH)
1. We
have heard learned counsel Mr J V Japee for the appellant and learned
counsel Mr P H Pathak for the respondents.
2. The
facts of the above two Letters Patent Appeals are though related to
different employees of the appellant Company/Industry, the facts of
the cases are almost similar and as common question of facts and
disputes are involved, we have heard them together and adjudicate the
same by way of this common judgment.
3. In
LPA No.877 of 2006 the appellant has challenged the order dated
20.6.2006 passed by the learned Single Judge in Special Civil
Application No.10265 of 2006 and the order dated 28.4.2005 passed by
the Labour Court, Bharuch in Reference (L.C.B.)No.171 of 2000.
Likewise, in LPA No.878 of 2006 the appellant has challenged the
order dated 20.6.2006 passed by the learned Single Judge in Special
Civil Application No.10266 of 2006 and the order dated 28.4.2005
passed by the Labour Court, Bharuch in Reference (L.C.B.)No.170 of
2000 directing to reinstate the respondents in service with full back
wages.
4. The
facts of the case in brief are that the appellant Surmount
Laboratories Pvt. Ltd. is a Pharmaceutical Industry producing various
types of allopathic medicines having its Factory at
Ankleshwar. The respondents had joined service with the
appellant in the beginning of June, 1983 as Machine Operators.
The appellant company was paying to its workmen the annual
increments and other service benefits. The respondents had raised
demand of increase of annual increment and for treating them as
skilled workers for which negotiations were going on. Meanwhile, to
bring undue pressure on the appellant company, the respondents of
both the appeals, in collusion with each other, refused to discharge
the day-to-day duties. The appellant had, therefore, given show
cause notice dated 7.8.1999 to the respondents and as the explanation
given by the respondents was not satisfactory, charge sheet was
issued on 17.8.1999 to initiate disciplinary proceedings and the
respondents were placed under suspension pending inquiry. The
inquiry was initiated and concluded in consonance with the principles
of natural justice by giving sufficient and adequate opportunity to
the respondents. The Inquiry Officer had given report wherein the
allegations were held to be proved. Thereafter the appellant had
given a second show cause notice dated 14.1.2000 along with the
report of the Inquiry Officer and as the explanation given by the
respondents was not found satisfactory, the appellant had passed
order dated 9.2.2000 discharging the respondents from service. The
appellant had paid all the legal dues by Account Payee cheque to the
respondents. Since the general demand of the workmen was pending
before the Labour Court, the appellant had filed an approval
application under section 33-2(B) before the Labour Court.
5. The
respondents have raised industrial disputes challenging the order of
discharge from service and claiming reinstatement with full back
wages. The case of the respondents is that they were victimized by
the appellant as they have raised the demand as stated before the
Labour Court and as such according to the respondents, they had never
refused to discharge their day-to-day duties.
6. Learned
counsel for the appellant has mainly argued that the learned Single
Judge has erred in believing the case of the respondents that they
were victimized and wrongly held that the disciplinary action taken
against the workmen was with ulterior motive and that the reasons
given by the learned Single Judge in support of the allegations of
victimization are not borne out from the award passed by the Labour
Court.
7. We
have carefully perused the entire award and all the relevant papers
forthcoming on the record. Referring the awards dated 28.4.2005
passed by the Labour Court, Bharuch, it is the specific finding of
the Labour Court that in June, 1983, the respondents workmen had
joined services of the appellant as Helper-unskilled Labourer and
after completion of one year of their service, the respondents were
discharging their duties as skilled Labourer as had been directed by
the appellant. In spite of that, the fact remains that the appellant
had never given the designations and pay of skilled labourer to the
respondents. On this issue, the respondents had raised their demands
before the appellant and on the basis of the incident dated 7.8.1999,
the respondents were given charge sheet dated 17.8.1999 and after
disciplinary inquiry the respondents were discharged from service. It
further appears that the Labour Court also found that termination of
service of the workmen was void ab initio and
the Labour Court has further given their specific finding that the
case of the workmen is a case of malafide and arbitrary exercise of
the power by the appellant management. Thus there appears no force
in the submissions made by the learned counsel for the appellant that
the findings given by the learned Single Judge is independent finding
of facts and the allegations of victimization are not borne out from
the award passed by the Labour Court. The learned Single Judge had,
at length, covered all the points considering the award passed by the
Labour Court and relevant paragraphs No. 6, 7, 8 and 9 of the order
dated 20.6.2006 passed in Special Civil Applications No.10265 of 2006
with Special Civil Application No.10266 of 2006 which is extracted
below:
“6. I
have considered the submissions made by learned advocate Mr. Japee
and I have perused the award passed by the Labour Court, Bharuch. The
Labour Court has discussed the statement and written statement filed
by both the parties. The Labour Court has also considered the
decision relied by both the parties. Thereafter, issue has been
framed whether punishment of discharge by order dated 9th
February 2000 is unjustified or harsh or not and whether workmen are
entitled for the reinstatement with continuity in service and
whether workmen are entitled for full back wages of interim period or
not. These issues were framed by the Labour Court and in paragraph
18, Labour Court has given detail reason in support of its
conclusion. Initially, both the workmen were working as unskilled
workmen, but by experience, according to them, they becomes skilled
workmen. Therefore, both the workmen made request to the petitioner
that while comparison to the work of other workmen, they are also
performing skilled work. Therefore, they are entitled for the salary
as a skilled employees. The another request was made by the workmen
that annual increments are not giving regularly and to give slip of
over time wages. This request was turned down by the petitioner.
Ultimately, both the workmen were approached to the Labour Union and
Labour Union has filed complaint in respect to the demand made by
both the workmen. Therefore, sudden reaction of employer was that
they orally terminated the services immediately on 20th
June 1999 by oral order. Therefore, against that oral order of
termination, both the workmen raised industrial disputes before the
Assistant Labour Commissioner, Bharuch to reinstate with continuity
of service with full back wages of interim period. A moment that
notice received from the Conciliation Officer, they realise their
mistake as hurriedly services were terminated without following due
process of law, therefore, immediately, petitioner was agreed to
reinstate both the workmen in service with full back wages of interim
period before the Conciliation Officer. Then both the workmen were
allowed to resume duty and back wages was paid. Then both the workmen
raised industrial disputes through Labour Commissioner about their
demand and that demand was raised by the Labour Union before the
appropriate authority immediately. It is a second reaction of the
petitioner to serve charge-sheet on 7th August 1999 and
suspended to both the workmen. Thereafter, the charge-sheet was
served dated 7th August 1999 within a short period after
reinstatement and inquiry was completed on 14th January
2000, calling the explanation from the workmen and then terminated
the service of workmen by order dated 9th February 2000.
Thus, this was back ground which ultimately with ulterior motive, the
management has taken action against the workmen on the ground that
they disobey the order and direction of the superior and they refused
to except the letter of the petitioner. This being a show create to
discharge both the workmen and merely/empty formality was followed
that after due process of law, order of discharge has been passed.
The legality and validity of departmental inquiry was not challenged
by the workmen and finding given by inquiry officer also not much in
dispute. But, Labour Court has considered this back ground in his
mind while exercising the power under Section 11-A of the Industrial
Disputes Act, 1947. The Labour Court has exercised the power under
Section 11-A of Industrial Disputes Act, 1947 on the ground that
allegations which were made against the workmen are not such so
serious which requires extreme penalty of discharge. The past conduct
has been totally ignored by the petitioner and it is not the case of
the petitioner that in past, any misconduct has been committed by
either of workmen. Therefore, Labour Court has considered this aspect
while exercising the power and come to the conclusion that it is
clear case of victimise and unfair labour pracise adopted by the
petitioner. This being a clear case of legal victimization. The
Labour Court has also appreciated that reply to charge-sheet and
reply to show cause notice by the workmen also not properly
appreciated by the competent authority. Therefore, once the employer
with clear motive and that clear intention discharged the workmen and
departmental inquiry is merely a formality which can be understood by
the independent authority being a Labour Court that on what basis and
in which manner and what purpose the order of discharge has been
passed by the employer. The petitioner has not proved the gainful
employment of either of workmen. Both the workmen were deposed before
the Labour Court that after the discharge order, they remained
without work and inspite of the sincere efforts made by both of them,
they are not able to obtain any work / job and they remained
unemployed. In light of this evidence before the Labour Court and
coming to the conclusion that discharge order has been passed by the
petitioner to remove the workmen on the ground that why they raised
hands before the petitioner for making some demands about their legal
rights. This punishment being a clear answer of demand raised by the
workmen before the petitioner to receive the discharge order. Such
type of action cannot be approved by an individual authority being a
Labour Court. Therefore, legislation has given wide power being an
independent authority to consider all the aspects of discharge order
passed by the employer and find out whether order of discharge is
suffered from victimization and unfair labour practice or not. The
Labour Court has power under Section 11-A, if Labour Court is
satisfied that order of punishment is unjustified or harsh then
Labour Court is entitled to pass appropriate orders at thinks fit by
him and in exercising the power, Labour Court can set aside the
discharge order and grant full relief to the workmen when Labour
Court has satisfied that discharge order is nothing but an ulterior
motive of the employer has been materialised by passing discharge
order. If inquiry has been held to be legal or either not challenged
by the workmen and finding recorded by the inquiry officer is legal
and valid, even though, Labour Court has power to pass appropriate
order while exercising the power under Section 11-A of the Industrial
Disputes Act, 1947. That view has been taken by the Apex Court in
case of Scooter India Limited Vs. Labour Court, Lakhnaw,
reported in AIR 1989 SC 149.
7. In
view of this, I have considered the reasoning given by the Labour
Court. The Labour Court has given cogent reason in support of each
issue framed by him and passed an order of granting reinstatement
with continuity of service with full back wages of interim period.
Accordingly to my opinion, Labour Court has rightly exercised the
power under Section 11-A of the Industrial Disputes Act, 1947. For
that, Labour Court having the jurisdiction to pass appropriate orders
when looking to gravity of misconduct, past record, if discharge
order is unjustified then it is a duty of the Labour Court to grant
proper relief to the workmen which according to my opinion, proper
relief rightly has been granted by the Labour Court. The submission
of learned advocate Mr. Japee that not to obey the order of superior
officer, it gives wrong signals to other workmen, but, if employer on
such allegations wherein only demand of legal right raised by the
workmen before the employer and if employer passed such order to
materialise his ulterior motive in this fashion then according to my
opinion, it also gives a wrong signals to the society. Therefore,
considering this aspect, Labour Court has not committed any error
including jurisdictional error while passing such award.
8. This
Court having a limited power to scrutinse the award in question while
exercising the power under Article 227 of the Constitution of India.
The view express by Apex Court in case of Laxmikant Revchand
Bhojwani and Another Vs. Pratapsing Mohansingh pardeshi reported
in (1995)6 SCC 576. The following observations are relevant
which are quoted as under :
“The
High Court under Article 227 cannot assume unlimited prerogative to
correct all species of hardship or wrong decisions. It must be
restricted to cases of grave dereliction of duty and flagrant abuse
of fundamental principles of law or justice, where grave in justice
would be done unless the High Court interferes.”
9. After
considering this observation of Apex Court and reasoning given by the
Labour Court, according to my opinion, there is no grave injustice
would be done to the petitioner if this Court will not interfere
under Article 227 of the Constitution of India. The Labour Court has
perfectly justified in passing such award. There is no infirmity in
the award. This Court cannot act as an appellate authority. Even, in
case of two views are possible no interference called for while
exercising the power under Article 227 of the Constitution of India.
This Court cannot interfere with such award. The submissions made by
learned advocate Mr. Japee cannot be accepted in light of the above
observation made by this Court. Learned advocate Mr. Japee is not
able to point out any infirmity in the award, therefore, when there
is no error committed by the Labour Court while passing such award,
is not required any interference by this Court while exercising the
power under Article 227 of the Constitution of India. There is no
substance in both the petitions and therefore, both the petitions are
disposed of.”
From
the discussion made hereinabove, we do not find any merit or
substance in the submissions made by the leaned counsel for the
appellant. We have also carefully perused the orders dated 20.6.2006
passed by the learned Single Judge in Special Civil Applications
No.10265 and 10266 of 2006. We do not find any infirmity or
illegality in the same and we find ourselves in complete agreement
with the same.
8. In
support of his submissions, learned counsel for the appellant has
placed reliance on the following decisions:
1.
Usha Breco Mazdoor Sangh v.Management of M/s Usha Breco Lrd. and
Anr. AIR 2009 SC (Supp) 994
2.
U.B. Gadhe & Ors. etc.etc. v. G.M. Gujarat Ambuja Cement Pvt.
Ltd. AIR 2008 SC 99
3.
J K Synthetics Ltd. v. K.P. Agrawal and Anr. AIR 2007 SC (supp) 637
(1)
4.
M/s. L & T Komatsu Ltd. v. N. Udayakumar AIR 2007 SC (supp) 1752
5.
M/s.Laxmi Rattan Cotton Mills Ltd. v. State of UP and Ors. AIR 2009
SC (Supp) 1
6.
U P State Brassware Corpn Ltd. & Anr. v. Udai Narain Pandey AIR
2006 SCC 586
We
are in agreement with the ratio laid down by the Apex Court in the
aforesaid decisions. According to us, none of the above decisions is
applicable to the case on hand because the facts and circumstances of
the case on hand are quite different and peculiar from the above
cases. The Labour Court had dealt with each issue at length and
found that the charges levelled against the workmen were not proved
and it was a case of clear victimization of the respondents and
malafide and arbitrary exercise of powers by the appellant
management. In our view, on the first ground of malafide exercise of
power, the Labour Court had allowed the References and it was rightly
upheld by the learned Single Judge. Looking to the overall facts and
circumstances of the case, the present Letters Patent Appeals being
meritless, deserve to be dismissed.
9. For
the aforesaid reasons, these Letters Patent Appeals No.877 of 2006
and 878 of 2006 are devoid of any merit and are accordingly
dismissed. There shall be no order as to costs.
sd/-
[V
M SAHAI, J.]
sd/-
[G
B SHAH, J.]
msp
Top